Disposed

Sri D S Sanjay v. Sri D Ajay

Karnataka HC2 Feb 2024WP/36636/2018

Case brief

AI extract

What is this about?

A plaintiff in a partition suit challenged a trial court order requiring court fee under Section 38 of the Karnataka Court Fees and Suit Valuation Act on Rs.90 lakh. The High Court held fee is payable on the value for which the relinquishment deed was executed and clarified it as Rs.7,50,000.

What did the court decide?

Petition disposed of with clarification that court fee under Section 38 applies to value of Rs.7,50,000, not Rs.90,00,000

Sri D S Sanjay Vs Sri D Ajay — Partition | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:4566 WP No. 36636 of 2018

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 2^ND DAY OF FEBRUARY, 2024

¶4

BEFORE

¶5

THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 36636 OF 2018 (GM-CPC)

¶6

BETWEEN:

¶7

SRI D S SANJAY S/O LATE D SURYANARAYANA SASTRY AGED ABOUT 43 YEARS COOLIE, CONTRACT LABOURER R/O NEW COLONY NEAR VISL HOSPITAL BHADRAVATHI - 577 301

¶8

…PETITIONER

¶9

(BY SRI. VARADARAJ R HAVALDAR.,ADVOCATE)

¶10

AND:

¶11

Digitally signed by PAVITHRA N Location: high court of karnataka

¶12

SRI D AJAY S/O LATE D SURYANARAYANA SASTRY AGED ABOUT 62 YEARS SENIOR MANAGER (CO ORDINATION) GM (WORKS) SECRETARIAT, SAIL/VISP, BHADRAVATHI R/O QUARTERS NO.GIC-7/8.JANNAPURA BHADRAVATHI - 577 301

¶13

SMT D S SWARNA LATHA D/O LATE D SURYANAGARAYAN SASTRY AGED ABOUT 59 YEARS HOUSWIFE R/O "PARNA KUTIRA" BEHIND HMS POLYTECHNIC 4TH PHASE, 3RD CROSS TUMAKURU - 572 101

¶14

…RESPONDENTS

¶15

(BY SRI.S V PRAKASH .,ADVOCATE FOR R1 AND 2)

¶16

2 - NC: 2024:KHC:4566 WP No. 36636 of 2018

¶17

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN O.S.211/2015 ON THE FILE OF THE 2ND ADDL. SR. CIVIL JUDGE, SHIMOGA, INCLUDING THE IMPUGNED ORDER DATED 11.07.2018 VIDE ANNEX-G FOR VERIFYING THE FACTUAL CORRECTNESS AND LEGALITY OF THE SAME;SET ASIDE THE SAID IMPUGNED ORDER DATED 11.7.2018 VIDE ANNEX-G PSSED IN O.S.NO. 211/2015 BY 2ND ADDL. SR. CIVIL JUDGE, SHIMOGA ON I.A.7 BY THE TRIAL COIURT BY ALLOWING THIS WRIT PETITION WITH COSTS AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

¶18

ORDER

¶19

The plaintiff in OS No.211 of 2015 on the file of the learned II Additional Senior Civil Judge, Shivamogga, is impugning the order dated 11.07.2018 allowing IA No.VII in part filed by the defendants under Section 10 read with Section 11 of the Karnataka Court Fees and Suit Valuation Act (for short 'the Act') and directing the plaintiff to pay Court fee on the market value of the suit property.

¶20

Heard Sri. Varadaraj R Havaldar, learned counsel for the petitioner and Sri. S V Prakash, learned counsel for respondent Nos. 1 and 2. Perused materials on record.

¶21

Learned counsel for the petitioner submitted that the petitioner as plaintiff filed the suit OS No.211 of 2015 for partition and separate possession seeking his 1/3rd share in the plaint schedule property, which constitute site with

¶22

3 - NC: 2024:KHC:4566 WP No. 36636 of 2018

¶23

residential building. He is also seeking declaration that the registered relinquishment deed dated 24.08.2015 is not binding on him. Defendant No.1 has appeared before the Trial Court and filed IA No.VII under Section 10 read with Section 11 of the Act, seeking determination of the Court fee payable by the plaintiff. The Trial Court allowed the said application directing the plaintiff to pay Court fee under Section 38 of the Act on the basis of market value of the suit property. Under the registered relinquishment deed dated 24.08.2015, no market value is specified. However, the plaintiff by mistake, specified the market value of the property as Rs.90,00,000/- which is without any basis. Under such circumstances, the Trial Court could not have directed the plaintiff to pay Court fee on the said market value. Therefore, the petitioner is before this Court. Under such circumstances, he contends that the main relief in the suit is for partition and separate possession and declaration sought in respect of the registered relinquishment deed is only an auxiliary to the main relief and therefore, the plaintiff is not liable to pay the Court fee on the declaratory relief. Hence, he prays for allowing the petition by setting aside the impugned order.

¶24

¶25

NC: 2024:KHC:4566 WP No. 36636 of 2018

¶26

Per contra, learned counsel for defendant No.1 opposing the petition submitted that, the suit is one for partition and separate possession and also for declaration that the registered relinquishment deed dated 24.08.2015 executed by the plaintiff and defendant No.2 in favour of defendant No.1, is not binding on him. The plaintiff himself valued the plaint schedule property at Rs.90,00,000/- in the valuation slip. Under such circumstances, the Trial Court was right in directing the plaintiff to pay the Court fee on the said valuation as provided under Section 38 of the Act. The Trial Court has not committed any error and the impugned order does not call for any interference. Hence, he prays for dismissal of the petition.

¶27

The plaintiff who is the petitioner herein filed suit for partition and separate possession. He has also sought for declaration of the registered relinquishment deed dated 24.08.2015 executed by him is not binding on him. When such a specific contention is taken by the plaintiff and when admittedly the plaintiff is one of the executants of relinquishment deed in question, the contention of the learned counsel for the petitioner that, the said relief seeking

¶28

¶29

NC: 2024:KHC:4566 WP No. 36636 of 2018

¶30

declaration is only auxiliary to the main relief i.e., partition and separate possession, cannot be accepted.

¶31

Section 38 of the Karnataka Court Fees and Suit

¶32

Valuation Act deals with payment of Court fee in a suit for cancellation of decree and documents.

¶33

This position of law is also not disputed by the learned counsel for the respondents. The relinquishment deed dated 24.08.2015 is produced before the Court. It does not specify the value of property. However, admittedly, there are three sharers who are entitled for the share in the plaint schedule property. Plaintiff and defendant No.2 have executed the relinquishment deed relinquishing their right over the property in favour of defendant No.1, who in turn, paid Rs.2,50,000/- each to the plaintiff and defendant No.2. Even though, it is not stated as to what was the value of the subject matter of the relinquishment deed, the recitals in the document would go to show that, two sharers have relinquished their share in favour of 3rd sharer by receiving Rs.5,00,000/-. Therefore, reasonably it can be concluded that the valuation of the property, for which the document is executed was

¶34

¶35

NC: 2024:KHC:4566 WP No. 36636 of 2018

¶36

Rs.7,50,000/- (Rs.2,50,000 X 3). When Section 38 of the Act makes it very clear that, if cancellation of the document is sought by the plaintiff, the amount or value of the property for which the document is executed is to be taken into consideration for determining the Court fee. I do not find any difficulty in the same.

¶37

The Trial Court allowed IA No.VII and passed the impugned order holding that, so far as declaratory relief is concerned, the plaintiff shall pay the Court fee under Section 38 of the Act on the basis of market value of the suit property. It is interpreted by both the learned counsel that the market value of the property should be as shown in the valuation slip. The plaintiff has shown the valuation as Rs.90,00,000/-. But since Section 38 of the Act makes it clear that the Court fee is payable on the value of the property for which the document is executed. Therefore, it cannot be interpreted to say that the market value of the property is to be determined as stated by plaintiff in the valuation slip.

¶38

Therefore, I am of the opinion that the Trial Court was right in directing the plaintiff to pay the Court fee as

¶39

NC: 2024:KHC:4566 WP No. 36636 of 2018

¶40

¶41

required under Section 38 of the Act. But it is to be clarified that the market value under Section 38 of the Act, would be Rs.7,50,000/- only and not Rs.90,00,000/- as tried to be

¶42

interpreted by the respondents.

¶43

Hence, with these clarifications, the writ petition is

disposed off .

Sd/JUDGE

SPV

List No.: 1 Sl No.: 8

Sri D S Sanjay v. Sri D Ajay

Case brief

What is this about?

What did the court decide?

Sri D S Sanjay v. Sri D Ajay

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rudraiah Vs Smt. Channamma

Smt. B.V. Anasuya @ Vs Sri Shanmukappa

Godrej Tyson Foods Limited Vs Smt. H S Sharadamma

Sri S Narasimha Naik Vs Smt Yashoda Bai

Bikya Kharvi Vs Govinda Rao Kanoji

Nagarajan Jayakumar Vs Sreedhar Rao